Opinion
August Term, 1813.
If the vendor of lands can not make a title, clearly good, as to part thereof, the vendee may claim a return of such part of the purchase-money as he has paid, and a rescission of the contract. (Ace. Wood v. Mason, 2 Cold., 252, citing this and other cases.)
And the title is doubtful as to land held under execution against heirs, upon a judgment founded on a scire facias in which the heirs were not specially named; the point never having been authoritatively determined, and ought not to be in this collateral way. (See Williams v. Seawell, 1 Y., 83, and Roberts v. Busby, 3 Hay., 195, where the point is resolved against such title.)
In case of rescission by decree, it will be ordered that the moneys paid by the vendee shall be a lien on the land. (Acc. Perkins v. Hadley, 4 Hay., 148; Pilcher v. Smith, 2 Head, 208; Hilton v. Duncan, 1 Cold., 320.)
After full argument and time taken to consider, the Court, composed of Overton and White, JJ., decided, —
First. That if the vendor of lands as to part can not make a title clearly good, the vendee may claim a return of such part of the purchase-money as he has paid, and a rescission of the contract.
Secondly. In this instance the tide to part of the lands sold is doubtful; for it is held under an execution against heirs, founded upon a judgment, which again was founded on a sci. fa. in which the heirs were not specially named; but were only described as the heirs of Elijah Robertson. And whether that be a good sci. fa. is not yet settled in this State by any judicial determination of the Supreme Court. It ought not to be settled when coming before the Court in a collateral way. It is enough at present to perceive that it is a disputable and an unsettled question.
Thirdly. In case of rescinding the bargain by a decree of the Court, it will be ordered that the moneys paid to the vendor shall be a lien on the estate sold.
A decree was made in conformity with the above principles.